Excerpt: ...ination, “the party shall obtain leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under sectio...

Excerpt: ...t of the professional negligence of a health care provider, the court may allow the filing of an amended complaint claiming punitive damages on a motion by the party seeking the amended pleading and “on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Id. § 425.13(a)...

Excerpt: ...tained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a d...

Excerpt: ...he Stipulation and Protective Order states that if a party designates information “confidential” or “highly confidential” under the order, another party objects to the designations, and the parties cannot resolve the dispute, the designating party may either de-designate the information or file a motion to uphold its confidentiality designations. Stipulation & Protective Order (filed 09/21/17) § 6. The designating party bears the burden ...

Excerpt: ...tion (Complaint, Prayer at 11:15) is granted without leave to amend. Punitive damages are recoverable in fraud actions involving intentional, but not negligent, misrepresentations. Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4 th 1226, 1241. Defendant also moves to strike Plaintiff's punitive damages allegations in his second cause of action for intentional misrepresentation and the related prayer for punitive damages (Complaint ¶ 30 at 7:1-...

Excerpt: ...ken. Based on Plaintiffs' stipulation, Defendant's motion to strike those portions of the Complaint is granted and they are stricken. Defendant argues that the phrase “in a reasonable manner” in paragraphs 30 and 31 should be stricken because Defendant is not liable for common law negligence and paragraphs 30 and 31 allege common law negligence. Plaintiffs' second cause of action – the only cause of action alleged against Defendant and the ...

Excerpt: ...ersonal jurisdiction. In the alternative, Klamath moves to dismiss the case based on forum non conveniens. For the following reasons, Klamath's motion to quash is denied. Klamath's alternative motion to dismiss based on forum non conveniens is also denied. A. Personal Jurisdiction 1. Hearing Date Relo argues that Klamath's motion should be denied because the notice of motion to quash did not designate a hearing date not more than thirty days afte...

Excerpt: ... commonly known as 5742 Thelma Avenue, La Palma, California, 90623. Ocwen opposes Plaintiffs' motion. For the following reasons, Plaintiffs' motion is denied. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of its claim and (ii) the balance of harm presented, i.e., the comparative consequen...

Excerpt: ...demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not ...

Excerpt: ... For the following reasons, Rush's motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Ag...

Excerpt: ... Defendant's motion is granted. Due to Plaintiff's failure to serve timely responses to the interrogatories, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Plaintiff shall provide responses, without objections, to Defendant's ...

Excerpt: ...y and all other diagnostic tests and procedures, including, but not limited to, all records reflecting the date of each visit, exams or treatment and all charges/billings made therefore pertaining to Kambiz Rouindej. All payments received from any source for services provided and the current amount due for treatment rendered. This subpoena requires the production of any and all x-rays, MRI films, tomograms, CT scans, photographs, etc. which may h...

Excerpt: ...d States Court of Appeals for the Ninth Circuit of an order of the United States District Court for the Central District of California dismissing Plaintiff's federal cause of action and remanding Plaintiff's lawsuit against Defendants South Coast Plaza and Rolex Watch USA, Inc. to Orange County Superior Court. Should Plaintiff's appeal succeed, Plaintiff's case would return to federal district court and that court could then determine whether to ...

Excerpt: ...motion is granted in part and denied in part. A. Document Production On or about July 13, 2018, SITO served Macaluso with a subpoena for records and a subpoena for testimony and records. Crisp Decl. ¶ 15 & Ex. 8. The latter subpoena sought the same records sought in the former subpoena. Id. Macaluso served written objections to the subpoena on August 6, 2018. Id. Ex. 10. Macaluso objected to Request Nos. 9, 10, 11, 13, 15, 15 and 19 on attorney-...

Excerpt: ...owing that order, Defendants again failed to respond to Plaintiff's pleading, this time failing to respond to Plaintiff's Second Amended Complaint (SAC). The court had granted Plaintiff leave to file its SAC on February 28, 2018. See 02/28/18 Order. Because Defendants failed to respond to the SAC, Defendants' defaults were entered again on April 25, 2018. Defendants, who are self- represented, contend they failed to timely respond to the SAC beca...

Excerpt: ... to Hackler seek: No. 9: Any and all time sheets for any cases which were transferred or referred to you/your firm from A. Nicholas Georggin. No. 10: Any and all time sheets for any cases which were transferred to you/your firm from anyone who worked for Krutcik & Georggin. While billing invoices are generally not made for the purpose of legal representation, the information contained within certain invoices may be within the scope of the attorne...

Excerpt: ...s punitive damages claim. For the following reasons, Defendants' motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ...

Excerpt: ...e on the party of written notice of entry of the order “and based upon new or different facts, circumstances, or law,” apply for reconsideration of the matter and seek an order modifying, amending or revoking the prior order. Cal. Civ. Proc. Code § 1008(a). “The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, ...

Excerpt: ...dies for that claim. The court has read and considered both parties' late-filed briefs. For the following reasons, Defendants' motion for judgment on the pleadings is overruled. Defendants contend that Plaintiffs are required to exhaust a “Grievance Review Procedure” set forth in four Memoranda of Understanding (MOU) between Plaintiff Santa Ana Police Officers Association and Defendant City of Santa Ana before Plaintiffs can bring a breach of...

Excerpt: ...on) in Stateline, Nevada. Buckley alleges that SWAT and Columbia, among others, were negligent in failing to supervise and secure the property where the assault occurred. Columbia provided management services at Horizon in January 2013. Columbia's Responsive Separate Statement No. 11 (undisputed). Columbia filed a Cross-Complaint against SWAT for express and implied indemnity, contribution/apportionment, and declaratory relief. On or about August...

Excerpt: ...cept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7. Facts appearing in exhibits attached ...

Excerpt: ...leges Defendant terminated him after Plaintiff suffered a heart attack and discriminated against Plaintiff based on disability. Defendant argues that the exclusive remedy provision of the worker's compensation law bars Plaintiff's intentional infliction of emotional distress claim. Defendant's demurrer does not challenge any of Plaintiff's other causes of action. Where the provisions of the workers' compensation system apply, an employer is liabl...

Excerpt: ...e binding unless adopted by the court; the court must independently consider the referee's findings before acting. Jovine v. FHP, Inc. (1998) 64 Cal.App.4 th 1506, 1522. The consent of the parties is not required; however, such nonconsensual reference is authorized under section 639 only in certain specified circumstances: (a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a ref...

Excerpt: ...rsuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. Plaintiff's theory against Defendant is based on ...

Excerpt: ...ndant previously stated it would produce. Defendant's counsel submitted a declaration stating that Defendant produced the documents responsive to Nos. 31 and 32 on June 19, 2018. Bankhead Decl. ¶ 3 & Ex. A. Plaintiff's motion to compel further responses and document production in response to Nos. 31 and 32 is denied as moot. Request Nos. 23 through 30, 33 and 34 seek documents showing Defendant's sales revenues and commissions paid to third part...

Excerpt: ..., Defendants' Notice of Motion does not state in the first paragraph the proper grounds for Defendants' motion. The Notice states that Defendants move pursuant to California Code of Civil Procedure § 473.5, but, as the court found previously, see05/17/18 Order, section 473.5 does not apply to Defendants' motion because Defendants do not contend that service of summons did not result in actual notice in time to defend the action. See Cal. Civ. Pr...

Excerpt: ...oach. Complaint ¶¶ 8-9. Plaintiff alleges Servite terminated him in September 2017 following the events from which this lawsuit arose. Id. ¶ 10. During a junior varsity basketball game on July 2, 2017, Plaintiff removed Defendant's teenage son, a player on the team, from the game. Id. ¶ 13. Defendant's son walked past Plaintiff as Plaintiff was speaking to him and, to get the son's attention, Plaintiff alleges he “lightly grabbed [Defendant...

Excerpt: ...orting papers largely focus on topics irrelevant to Plaintiff's motion. Indeed, the court could not discern from the briefs which issues the parties believe require court intervention. As a result, while the court has read and considered all of the papers filed in support of and in opposition to Plaintiff's motion, the court relies on Plaintiff's and Defendant's Separate Statements to identify the requests and topics at issue in this motion, whic...

Excerpt: ...desires to obtain discovery by a mental examination must obtain leave of court. The motion must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. Id. § 2032.310(b). The court shall grant a motion for a mental examination under section 2032.310 only for good cause shown. Id. § 2032.320(a). Plaintiff alleg...

Excerpt: ...anti-SLAPP motion “shall be entitled to recover his or her attorneys' fees and costs.” Cal. Civ. Proc. Code § 425.16(c). Where, as here, a defendant partially prevails on an anti-SLAPP motion, that defendant “must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Mann v. Quality Old Time Service, Inc. (2006) 139...

Excerpt: ...ing out of the professional negligence of a health care provider, the court may allow the filing of an amended complaint claiming punitive damages on a motion by the party seeking the amended pleading and “on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Id. § 425...

Excerpt: ...h of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Defendant argues that Plaintiffs' Complaint should be dismissed because Plaintiffs have not sufficiently alleged facts demonstrating demand futility. Plaintiffs alleg...

Excerpt: ...reasons, NuEyes's motion is granted in part and denied in part. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of its claim and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct. (2002) 102 Cal...

Excerpt: ...rthi, Nathan Bedoya, and Kevin Huynh (together, the “FAC Defendants”) move for an order compelling arbitration of Plaintiff MyChoice Software, LLC's First Amended Complaint (the “FAC”) against them and staying this action pending completion of the arbitration. For the following reasons, the FAC Defendants' motion is granted. The FAC Defendants argue that Plaintiff's FAC, which Plaintiff filed in April 2018 and which added the FAC Defendan...

Excerpt: .... Due to Plaintiff's failure to serve responses to the requests, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Plaintiff shall provide responses, without objections, to Defendant's Form Interrogatories (Set Two) by August 6, ...

Excerpt: ...atutory Offer to Compromise). In relevant part, the offer stated: PLEASE TAKE NOTICE that Defendants DAVID CROFTON and SANDRA CROFTON hereby offer to compromise this litigation for the sum of Fifth Thousand and One Dollars ($50,001) to plaintiff BRYAN PEREZ pursuant to Code of Civil Procedure § 998. . . . This offer to compromise and acceptance thereof is expressly conditioned upon the following: . . . 4. This offer to compromise is subject to d...

Excerpt: ...enter a judgment of no liability in favor of Southwire. See 07/18/18 Order. No other parties filed oppositions to Southwire's motion and no other parties stated at the July 18, 2018 hearing any opposition to Southwire's motion. See id. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, th...

Excerpt: ...arch 22, 2018 and offer competing recollections of the court's comments regarding discovery motions outstanding at the time the stay commenced. While a transcript of the March 22, 2018 hearing apparently exists, neither party provided a copy of the transcript to the court. In addition, it appears from Plaintiff's opposition papers that during some period of the parties' recent correspondence regarding Plaintiff's responses to Defendant's Third Se...

Excerpt: ...nd. Plaintiffs' first and second causes of action do not identify the contract(s) on which each of these causes of action is purportedly based. See CACI 303 & 325. Defendant's demurrer to Plaintiffs' third cause of action for negligence and fourth cause of action for negligent infliction of emotional distress is sustained with leave to amend. Plaintiff's third and fourth causes of action do not identify an actionable duty owed by a foreclosing tr...

Excerpt: ...n for summary judgment or, in the alternative, summary adjudication, because Defendant's motion papers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Rule 3.1350(b) states: If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is ...

Excerpt: ...ise, Defendant obtained summary judgment in its favor. See03/23/18 Order. Defendant thereafter filed a costs memorandum seeking reimbursement for $8,538.86. Defendant's postoffer costs total $5,193.21. Plaintiff does not challenge any of the specific cost items or amounts Defendants claim. Rather, as discussed below, Plaintiff makes two arguments against a costs award in general. Plaintiff first argues that Defendant is not entitled to costs base...

Excerpt: ...solve the issues raised in this motion informally or to meet and confer with Defendant about the responses at issue before filing this motion. See Sorenson Decl. ¶ 8. Plaintiff's motion is therefore denied. Defendant's request for sanctions is granted. Monetary sanctions are mandatory when a party fails to confer as required. Cal. Civ. Proc. Code § 2023.020 (“Notwithstanding the outcome of the particular discovery motion, the court shall impo...

Excerpt: ...tice of Acceptance of Offer to Compromise. Plaintiff accepted Defendants' section 998 offer. In exchange for a dismissal with prejudice of this action, Plaintiff accepted $25,000. On March 1, 2018, the court entered judgment in Plaintiff's favor. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If a plaintiff recovers a judgment in an unlimited civil case th...

Excerpt: ...nt agreed by the Naman plaintiff and the involved insurance carrier. Plaintiff A. Nicholas Georggin requests that the court issue the order the Receiver requests. Defendant James A. Krutcik filed a “Qualified Opposition” to the Receiver's request. For the following reasons, the Receiver's petition is granted. A receiver is an agent of the court and not of any party. Cal. R. Ct. 3.1179(a). As such, a receiver is neutral, acts for the benefit o...

Excerpt: ...acie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that ...

Excerpt: ... Decl. Exs. A & B. This instant motion is directed at seventy- three additional requests for admission from Defendant Dubin Law Firm and a corresponding form interrogatory. See id. Exs. D & E. No party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents. Cal. Civ. Proc. Code § 2033;030(a). Subject to the right of the responding party to seek a protective order un...

Excerpt: ... the following reasons, Defendants' motion is denied. In 2014, Plaintiffs and Lanzon entered into an Agreement for Sale and Transfer of Shares by which Plaintiffs transferred their shares in Defendant Bike Religion to Lanzon, resulting in Lanzon becoming the sole owner of Bike Religion. Lanzon Decl. Ex. A (04/11/14 Agreement) (¶ 1). The Agreement provided that Lanzon would assume various ongoing obligation of Bike Religion: 4. Lanzon Credit Obli...

Excerpt: ...including any party to the action. Cal. Civ. Proc. Code § 2025.010. Plaintiff has twice noticed the deposition of Defendant Jessica Trujillo. Defendant does not contend her deposition cannot or should not be taken. Plaintiff's motion is therefore granted. Defendant Jessica Trujillo is ordered to appear for deposition on June 22, 2018 at 9:00 a.m. at the offices of Carpenter, Zuckerman & Rowley, LLP, 8827 West Olympic Boulevard, Beverly Hills, Ca...

Excerpt: ...7, 2018. Id. Ex. C. Plaintiff did not serve timely responses. Rather, on March 18, 2018, Plaintiff sent Defendant a letter in which Plaintiff set forth various general objections to the form interrogatories as a whole. Id. Ex. D. Despite this untimely response, Defendant granted Plaintiff another extension to April 2, 2018 to respond to the form interrogatories. Id. Ex. E. Plaintiff did not serve timely responses by that date either; Plaintiff se...

Excerpt: ...s procedural and substantive facts, including the court's finding in favor of Defendant Mauricio, see05/11/18 Order, the court does not find that the circumstances of this case or Defendant Mauricio's role in it, including his failure to appear for the April 20, 2018 Mandatory Settlement Conference, warrants an award of attorneys' fees and costs against Defendant Mauricio. Plaintiff's motion is denied. Clerk to give notice. ...